CLAIM NOS. E413740 and E416583
Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 18, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PHILLIP WELLS, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by the HONORABLE GAIL PONDER GAINES, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] Respondents appeal an opinion and order filed by the administrative law judge on May 18, 1995. In that opinion and order, the administrative law judge found that the claimant sustained a compensable injury to the right knee on June 24, 1994. After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable knee injury as the result of an incident which occurred on June 24, 1994, as he contends. Therefore, we find that the administrative law judge’s decision must be reversed.
[9] If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the injury alleged, he fails to establish the compensability of the claim, and compensation must be denied. Reed, supra. [10] In the present claim, after a de novo review of the entire record, we find that claimant failed to prove by a preponderance of the evidence that his knee injury was caused by a specific incident and is identifiable by time and place of occurrence. Claimant contends that he injured his right knee as a result of a fall on June 24, 1994 and that the initial symptoms of the knee injury subsided within two to three weeks of injury. Then, according to claimant, symptoms reappeared prior to a visit to Dr. Plunk on November 9, 1994, over four months later. [11] However, the preponderance of the evidence presented indicates that claimant did not experience any knee injury symptoms during the two to three weeks following the work-related fall, as he contends. In that regard, two co-workers and a foreman at the Fayetteville site each testified that claimant described to them a tailbone injury following the fall, but claimant apparently never mentioned any knee injury to co-workers in Fayetteville during the two weeks that he contends he had knee injury symptoms. Nor did claimant indicate any suspected knee injury when he completed a workers’ compensation AR-N form on July 6, 1994, slightly more than two weeks following the work-related fall. Instead, in response to the question, “what part of your body was injured?”, claimant responded “bone that is between tailbone and disk on lower back is broken”. In addition, Dr. Plunk examined claimant two weeks after the June 24, 1994 fall, and her medical notes contain no mention of any knee injury symptoms reported at that time despite her questioning claimant regarding the limp she observed as he walked. In short, the record contains no documentation or corroborating testimony by disinterested witnesses supporting claimant’s contention that he sustained a work-related knee injury at the Fayetteville site which became asymptomatic after two to three weeks. [12] We note that claimant’s girlfriend testified that she visited claimant in Fayetteville, that she also spoke with claimant on the telephone about his fall and injury, and that she first noticed an effect on claimant’s walking because of a knee injury approximately two weeks after the fall. In that regard, she also testified she told claimant to get his knee checked out. However, claimant’s girlfriend was present at Dr. Plunk’s home when the doctor first examined claimant two weeks after the fall. Dr. Plunk’s office records and testimony make clear that neither claimant or his girlfriend brought up a potential knee injury during that first examination or during any other examination for the first four months after the fall. [13] In addition, claimant’s own description of the work-related fall appears to have materially changed on November 11, 1994, when he first complained of knee pain to Dr. Plunk. In that regard, claimant’s nearly contemporaneous description of the fall, contained in a July 6, 1994 AR-N report, indicates claimant “[w]as stepping off ladder when ladder kicked out from under me, causing me to land on my tail back on top of a drill”. During his November 9, 1994, visit to Dr. Plunk, however, Dr. Plunk wrote that “Injury occurred in Fayetteville, Ark. when he fell off the ladder and struck his back but before he fell he firstlanded on knee.” [Emphasis added]. [14] We note that Dr. Plunk has opined that the knee problems are causally related to the compensable fall. However, Dr. Plunk’s opinion is based on the claimant’s modified account of his injury. However, he did not relate this account until over four months after the accident, and this account is not consistent with other evidence in the record, as discussed above. [15] In summary, the testimony of claimant and his girlfriend, that claimant suffered knee injury symptoms for two to three weeks after a work-related fall on June 24, 1994, is inconsistent with the testimony of his co-workers, the statements made to medical care providers, and forms completed by the claimant. Aside from the testimony of the claimant his girlfriend, there is essentially no evidence of any complaints of knee injury symptoms until more than four months after claimant’s work-related fall, and more than two months after claimant’s last work assignment with respondents. [16] Accordingly, based on our de novo review of the record, and for the reasons discussed herein, we find that claimant failed to prove by a preponderance of the evidence that a specific incident occurred on June 6, 1994, which arose out of and in the course of his employment and which resulted in an injury to his right knee, as claimant contends. Therefore, we find that the administrative law judge’s decision must be, and hereby is, reversed. This claim is denied and dismissed. [17] IT IS SO ORDERED.(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment (see, Ark. Code Ann. § 11-9-102 (5)(A)(i) (Cumm. Supp. 1993); Ark. Code Ann. § 11-9-102 (5)(E)(i) (Cumm. Supp. 1993); see also, Ark. Code Ann. § 11-9-401 (a)(1) (Cumm. Supp. 1993));
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death (see, Ark. Code Ann. § 11-9-102 (5) (A)(i) (Cumm. Supp. 1993));
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102 (16), establishing the injury (see, Ark. Code Ann. § 11-9-102 (5)(D) (Cumm. Supp. 1993));
(4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence (see, Ark. Code Ann. § 11-9-102 (5)(A)(i) (Cumm. Supp. 1993)).
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[18] Commissioner Humphrey dissents.